By Bridgette Regener -
Snapshot
- Full Federal Court opens the door to high-value claims
- Rejects 30 years of case law
- Increases general damages from $18,000 to $100,000
In a ground-breaking decision significantly increasing the risks associated with sexual harassment claims, the Full Federal Court, in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, has rejected almost 30 years of case law that set general damages for sexual harassment at a “conservative level” and which the Full Court found to be manifestly inadequate and “out of step” with community standards.
Background
Like the Sex Discrimination Act 1984 (Cth), sexual harassment has a relatively short history in Australian law. The first Australian case to consider sexual harassment (as a form of sex discrimination under the Anti-Discrimination Act 1977 (NSW)) was the seminal decision of Mathews DCJ (as she then was) sitting as a Judicial Member in O`Callaghan v Loder (1984) EOC 92-023. In their infancy, the statutes that established sexual harassment as a cause of action were controversial. As observed by Kenny J (with whom Perram and Besanko JJ agreed) in Oracle at [83] and [85]: “Early decisions … indicate a degree of uncertainty … The apparent result of this initial uncertainty was that the range of awards for general damages in cases of the present kind was fixed at a conservative level”.
Almost 30 years later, at the time of the Oracle trial, it was generally accepted that absent features of aggravation – such as psychological trauma resulting in incapacity for work – the appropriate range of general damages in a sexual harassment claim was $12,000 to $20,000: Oracle at [89].
